upon the practice of orthodontia in the District of Columbia, and plaintiff brought suit to enforce the restrictive covenant, which the Court upheld. That case, however, differs from the instant one in several respects. As pointed out therein, the practice of orthodontia was a specialty which had then been in existence for only about 30 years. There was little chance for a student to acquire knowledge of this science except by becoming associated with an orthodontist, and receiving training and instruction in that manner. The defendant obtained not only the advantages of a preceptorship, but also the advantages gained by his acquaintanceship with patients of defendant. He, therefore, acquired something from plaintiff by reason of his employment which required the protection of the covenant. There are no such special considerations involved in the instant case.
The other appellate opinion is found in Chemical Fireproofing Corp. v. Krouse, 81 U.S.App.D.C. 145, 155 F.2d 422, which involved an employment contract. Plaintiff sought an injunction to prevent defendant from solicitation of the former's customers under a restrictive covenant. The only issue decided by the Court of Appeals was that the territorial limitation of several states and the District of Columbia and the time limitation of three years was unreasonable and invalid.
In the District Court I find two reported cases relating to an employment contract, but they do not appear to be pertinent to the issue involved in this case. In one, Byram v. Vaughn, D.C., 68 F.Supp. 981, the Court refused to enforce a restrictive covenant on the ground that there was no mutuality of obligation, in that the agreement of employment contained no undertaking on the part of the employer to continue the employee's services for any specified time, and that so far as the employer's obligation was concerned he could have with impunity terminated the employment and discharged the employee the day or even the minute after the employment commenced. No such condition exists in this case. The other case in the District Court is Meyer, v. Wineburgh, D.C., 110 F.Supp. 957, involving a contract of employment. There the Court issued a temporary injunction, but did so on the basis that it was to preserve to plaintiffs the fruits of defendant's services for which he had been paid as an employee of plaintiff. The case is therefore not in point.
This appears to exhaust the case law in this jurisdiction, and neither diligence of counsel nor I have been able to find any authority to support plaintiff's position on the factual situation involved herein, namely, a contract of employment solely, involving no trade secrets, confidential knowledge, expert training or fruits of employment to give support to the covenant after defendant left the services of plaintiff. No longer is it a covenant ancillary to the purchase of a business and the protection of good will on which reliance might be placed for validity. Nor has defendant acquired something from his employment which needs the protection of the covenant. Its effect, if enforceable after termination of the employer-employee relationship, would be to maintain defendant in a state of servitude to plaintiff, that is, it would require him to work for plaintiff or not work at all in the only business he knows, and the latter would now be his lot until the expiration date. On this point the evidence shows that defendant's whole life work and training and skill have been involved in this line of work, and that he has no training in any other. His slight excursion in, and experience with, the sale of restaurant equipment in conjunction with plaintiff during the time he was plaintiff's employee, as shown by the evidence, is not convincing that he could profitably enter that business, even if he had the capital or the credit required, which the evidence discloses he does not possess.
I am therefore of the view that plaintiff, after revoking an apparently valid covenant ancillary to the purchase of the business, has now drawn the string so taut that the covenant no longer has validity, being unsupported by an existing employer-employee relationship or any special right or consideration of the character above set forth which reasonably required protection. This view follows the reasoning of many Federal and State cases, several of which are cited in the footnote.
Among them also are Erikson v. Hawley, supra, and the landmark case of United States v. Addyston Pipe and Steel Company, C.C., 85 F. 271, 281, 46 L.R.A. 122, in which Circuit Judge Taft wrote the opinion concurred in by Judges Harlan and Lurton. In it he states that covenants in partial restraint of trade are generally upheld as valid when they are:
'agreements (1) by the seller of property or business not to compete with the buyer in such a way as to derogate from the value of the property or business sold; (2) by a retiring partner not to compete with the firm; (3) by a partner pending the partnership not to do anything to interfere, by competition or otherwise, with the business of the firm; (4) by the buyer of property not to use the same in competition with the business retained by the seller; and (5) by an assistant, servant, or agent not to compete with his master or employer after the expiration of his time of service. Before such agreements are upheld, however, the court must find that the restraints attempted thereby are reasonably necessary (1, 2, and 3) to the enjoyment by the buyer of the property, good will, or interest in the partnership bought; or (4) to the legitimate ends of the existing partnership; or (5) to the prevention of possible injury to the business of the seller from use by the buyer of the thing sold; or (6) to protection from the danger of loss to the employer's business caused by the unjust use on the part of the employee of the confidential knowledge acquired in such business.' (Emphasis supplied.)
This case comes within none of the categories set forth by Judge Taft.
Also it should be stated that the covenant in question does not set forth the limitations of the territory with exactitude. It merely states that the defendant agrees not to 'engage in any competitive business' involving the sale of barber and beauty shop equipment or supplies as sold by the plaintiff. It is true that in some cases
this inexactitude as to territory has been interpreted by the Courts to intend to protect against competition within a certain territory where the plaintiff is shown by the evidence to be in business, but it is not necessary to reach that question because of its invalidity in any event, for the reasons above stated.
One point remains. Plaintiff contends that not to enforce the covenant would allow defendant to profit by his own wrong doing. But to this contention I do not subscribe. Plaintiff has lost no money by defendant's acts, and he voluntarily terminated the agreement of employment. When he did so by agreement with defendant, for whatever cause, he lost the benefit of the covenant, as there was no longer an employer-employee relationship on which to predicate it. Nor were there any special benefits of defendant's employment to support its future validity. In my opinion, the covenant is unenforceable as in unreasonable restraint of trade and contrary to public policy.
Accordingly, I find for the defendnats. The temporary injunction will be dissolved, and a permanent injunction will be denied. Counsel will submit judgment accordingly. If findings in addition to those contained in this opinion are considered necessary by counsel, they will be submitted on notice.